Reservation: Who will benefit

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• Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.
• Parliament and State Legislatures, structure, functioning, conduct of business, powers & privileges and issues arising out of these

In News: The BJP-led government has tabled a constitutional amendment bill to provide 10 per cent reservation in jobs and higher education to economically backward sections among the upper castes – ‘the economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged’.

The Union Cabinet has approved the Constitution (One Hundred and Twenty Fourth Amendment) Bill. Now that it has been passed in the Lower House, the Bill will be moved in the Rajya Sabha.

The government move comes in the backdrop of an upper caste backlash against the Modi government’s decision against the Supreme Court’s attempt at ring-fencing apprehensions of misuse of the SC/ST Prevention of Atrocities Act. The Supreme Court move had sparked nation-wide protests from Dalit groups across the country after which the government brought a legislation in the last monsoon session to nullify the SC order.

Why: The Bill needs to be passed by a special majority of two-thirds of members present in each House, not less than half the strength in both. Following this, it will have to be ratified by at least half of the state legislatures. It will also have to face legal challenges if any.

The Constitution 124th Amendment Bill

The bill has to be a constitutional amendment as it overshoots the Supreme Court’s 50% cap on quotas and takes the total to 60%. Any increase from that limit will be subject to judicial scrutiny.

Amended two fundamental rights:

• Article 15, which prohibits discrimination on the grounds of race, religion, caste, sex or place of birth
• Article 16 which prohibits discrimination in employment in government office

The amendment provides for the advancement of the “economically weaker sections” of the society.

It also makes a note of the Article 46, which asks the government to promote the educational and economic interests of the weaker sections of the society.

Moreover, it provides reservation for:

1. People who have an annual income of less than Rs.8 lakhs, or
2. People who own less than five acres of farm land, or
3. People who have a house lesser than 1,000 sq feet in a town (or 100 sq yard in a notified municipal area).

Legal scrutiny of the Supreme Court

The Supreme Court has ruled multiple times against exceeding its 1992 formula of a maximum of 50 per cent reservation.

In the early 1990s, an effort by the Narasimha Rao government to provide 10 per cent reservation to poor or economically backward among other sections to offset the political backlash against the implementation of Mandal Commission recommendations was nullified by the Supreme Court.

In 1992, a nine-judge bench of the Supreme Court in the Indra Sawhney judgment upheld the principle that social and educational backwardness rather than economic deprivation was the constitutional criteria for reservations. Striking down quotas for poor among the upper castes, the verdict noted that, “a backward class cannot be determined only and exclusively with reference to economic criterion. It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion…”

The principle behind affirmative action was to give castes that had been denied access to education the opportunity to have, in Ambedkar’s words, a “look in” into administration and power structures of the state. Economically weaker individuals belonging to the upper castes never faced such scripturally mandated exclusion and discrimination.

• Reservations cannot exceed the limit of 50% of seats and jobs.
• Reservations cannot be based on economic criteria alone.

Can the 50% limit be breached?

The 50% limit has been breached by the state of Tamil Nadu as well and the Supreme Court is yet to decide the validity of the state’s law breaching the 50% limit on reservations. Although the reservations in that law were purely on the basis of social and educational backwardness, nonetheless any challenge to the constitutionality of the proposed amendment will require the court, willy-nilly to decide the validity of all attempts to go past the 50% limit.

Criticisms

• These selected sections pay income tax. Economically weak are those who do not pay income tax or are earning not more than two lakhs or in the range of it. In fact, eligibility criteria for ‘economic weakness’ has been devised in such a way that it appears to cover almost all Indians barring the top upper crust of may be three per cent.
• The Bill was rushed through in 48 hours without scrutiny by a parliamentary committee and without public debate. On the other hand, the constitution amendment Bill to reserve one-third of the seats in the Lok Sabha and state legislatures for women is languishing since 2008.
• The big question mark is about the supply side. More seats in schools and colleges can be sanctioned by the government without regard to the paucity of infrastructure or qualified teachers. But, in the case of posts in the government, where are the posts? Is it the intention of the government to vastly expand the government at all levels — central, state, municipal, panchayat, parastatal and public sector? The number of employees in central public sector enterprises actually declined from 16,90,741 in end March 2014 to 15,23,586 in end March 2017.

As civil services aspirants, we must understand and be clear with our viewpoints –

• Poverty has structural causes, the biggest one in India being caste. Poverty is a symptom of the structural barrier the caste system imposed to accessing resources. Reservations are not charity but a means to ensuring parity for those who had been denied opportunity. But when reservations are reduced to purely “economic” criteria, they become charity.
• Reservations are no panacea against caste inequality. It requires a complete overhauling of the education system by providing free and common schooling to all for any sort of level playing field to emerge. But the first step to address any curse is to acknowledge that it exists. We resolutely refuse to do so.

Connecting the Dots:

1. The 10 per cent quota is an abomination on the Constitution, a historical step backwards in India’s painfully slow journey towards a more equal society. Do you agree? Discuss.
2. Can the amendment allowing reservations for “economically weaker sections” (if and when passed) be struck down on the ground of violating the basic structure of the Constitution? Discuss.
3. Political courage is a blessing greater than judicial wisdom; however, dewy-eyed populism must not enrapture the sensibilities of state policy. Examine this statement in the light of the controversy regarding the Constitution 124th Amendment Bill.